AMERICAN CIVIL LIBERTIES v. U.S. GEN. SERVICES

December 2, 2002

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, ON BEHALF OF ALL PERSONS AND ORGANIZATIONS SIMILARLY SITUATED, PLAINTIFF,V.UNITED STATES GENERAL SERVICES ADMINISTRATION AND RALETTA INGRAM, IN HER INDIVIDUAL CAPACITY, DEFENDANTS.

The opinion of the court was delivered by: Ruben Castillo, United States District Judge

MEMORANDUM OPINION AND ORDER

As this Court noted when it gave preliminary approval to this
settlement, our Constitution was not among the list of endless casualties
suffered by our country on September 11, 2001. This lawsuit, like many
others our brother and sister colleagues have confronted since the
profoundly tragic events of September 11, 2001, involves the complex
tension between national security and personal freedom. This tension is
not new to our court system; indeed, our courts repeatedly have been
faced with attempts to curtail civil liberties in the face of perceived
threats to our national well-being. See, e.g., New York Times Co. v.
United States, 403 U.S. 713 (1971); Korematsu v. United States,
323 U.S. 214, 219-20 (1944); Hague v. Comm. for Indus. Org., 307 U.S. 496,
515-16 (1939) (Roberts, J., concurring). It is critical that courts again
heighten their overall vigilance and willingness to uphold our
constitutional freedoms during this turbulent period of our history. See
New York Times, 403 U.S. at 718-19 (Black, J., concurring); Korematsu,
323 U.S. at 234-35 (Murphy, J., dissenting).*fn1

This particular lawsuit involves the First Amendment and the rights of
the general citizenry to petition their government by conducting public
rallies at our federal plaza. The American Civil Liberties Union of
Illinois ("ACLU"), on behalf of itself and a plaintiff class and
sub-class, sued the United States General Services Administration ("GSA")
and its Property Manager, Raletta Ingram, in her individual capacity.
Plaintiff challenges aspects of the GSA's practice of issuing
occasional-use permits for leafleting on the federal plaza. Presently
before the Court is the parties' joint motion for final approval of the
class settlement and for dismissal with prejudice. For the reasons stated
herein, the motion is granted. (R. 64-1.)

RELEVANT FACTS

Plaintiff filed its original class-action complaint on May 1, 2002,
alleging that Defendants violated the First Amendment by requiring a
permit and prior review of all materials to be distributed on the federal
plaza and by prohibiting two groups from leafleting on the plaza at the
same time. After the terrorist attacks on September 11, the GSA
temporarily suspended the issuance of occasional-use permits for the
federal plaza. As a result, the ACLU filed an amended complaint that
modified its earlier allegations and added a count challenging the GSA's
suspension of permits after the terrorist attacks. On March 12, 2002,
this Court certified two plaintiff classes based on the allegations of
the first amended complaint. The ACLU next moved for, and was granted,
leave to file a second amended complaint on June 18, 2002. The second
amended complaint dismissed most of the existing claims, but retained the
count alleging that the GSA impermissibly treated similarly situated
groups differently when deciding whether to issue an occasional-use
permit for the
federal plaza. The second amended complaint also alleged a
claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against Raletta Ingram in her individual
capacity. Finally, this complaint redefined class and sub-class
membership.*fn2

Thereafter the parties engaged in discovery and extensive
negotiations, which ultimately resulted in the proposed settlement. The
stipulated settlement, among other things, provides that the GSA may not
decline to issue an occasional-use permit solely on the ground that it
has already granted a permit to another group or individual to use the
plaza at the same time, including cases where the second group or
individual opposes the activity of the first party. (R. 64, Joint Mot.
for Approval, Ex. 1, Proposed Stip. for Settlement.) The GSA may decline
to issue a permit, however, or may limit a group or individual to a
portion of the federal plaza if that reason is justified by applicable law
or regulations, or any other legitimate federal interest.*fn3 (Id.) We now
consider whether to give final approval to the proposed settlement.

ANALYSIS

In Hispanics United of DuPage County v. Village of Addison, Illinois,
988 F. Supp. 1130 (N.D.Ill. 1997), this Court considered several factors
in determining whether a settlement should be given final approval. The
touchstone of this inquiry is whether the settlement, taken as a whole,
is "fair, reasonable and adequate." Id. at 1149 (citing Isby v. Bayh,
75 F.3d 1191, 1196 (7th Cir. 1996)). The relevant factors include: (1)
the strength of plaintiff's case on the merits, balanced against the
settlement amount; (2) the defendant's ability to pay; (3) the
complexity, expense and likely duration of further litigation; (4) the
amount of opposition to the settlement; (5) the presence of collusion in
reaching a settlement; (6) the reaction of the members of the class to
the settlement; (7) the opinion of competent counsel; (8) the stages of
the proceedings and the amount of discovery completed; and (9) the public
interest. Id. at 1150.

The parties have exhaustively addressed the relevant factors. We accept
their analysis and reasoning and agree that all the relevant factors
establish that the proposed settlement is reasonable, fair and adequate.
We pause only to make the following additional observations. First, we
commend the ACLU for its diligence in monitoring and raising important
First Amendment issues before this Court. We praise both parties for
their efforts in this case and, most importantly, for crafting a
settlement sensitive to the delicate balance between our civil liberties
and our government's interest in preserving security. As noted above, we
must now, as other courts have in the past, champion the First Amendment
during these uncertain times to ensure that the means chosen by the
government to protect our national security do not compromise the letter
and spirit
of the First Amendment. See, e.g., United States v. Robel,
389 U.S. 258, 264, 268 n. 20 (1967) ("[e]ven the war power does not
remove constitutional limitations safeguarding essential liberties.")
(internal citations and quotations omitted.). One commentator aptly
summarized the problem in this way: the courts' approach to the First
Amendment should be designed so that "the overriding objective at all
times should be to equip the first amendment to do maximum service in
those historical periods when intolerance of unorthodox ideas is the most
prevalent and when governments are most able and most likely to stifle
dissent systematically. The first amendment, in other words, should be
targeted for the worst of times." Vincent Blasi, The Pathological
Perspective and the First Amendment, 85 Colum. L. Rev. 449, 449-50
(1985). This is one of those times; thus, although litigants and the
courts must recognize the need for "heightened deference to the judgments
of the political branches with respect to matters of national security"
when terrorism or other special circumstances are at issue, "deference is
not a basis for abdicating our responsibilities under the First
Amendment." North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198,
226-27 (3d Cir. 2001) (Scirica, J., dissenting) (quoting Zadvydas v.
Davis, 533 U.S. 678, 700 (2001)); Worrell Newspapers of Ind., Inc. v.
Westhafer, 739 F.2d 1219, 1223 (7th Cir. 1984) (noting that infringement
upon First Amendment freedoms may be justified, but only in exceptional
cases and "[e]ven the country's interest in national security must bend
to the dictates of the First Amendment") (internal citation omitted).
Only heightened diligence, like that displayed in this case, will ensure
that our civil liberties are protected in times when we most feel the
urge to suppress them in the name of national security. Thus, for
purposes of this litigation it is critical that in this era of global
conflict that a full and robust debate of these important national
security issues occur in the public setting of the federal plaza.

Next, we note that at the time the parties submitted their joint motion
for approval of the settlement, the fairness hearing in this case had not
yet been held, and therefore, the parties did not comment on the fourth
and sixth factors listed above. This Court held a fairness hearing on
November 26, 2002, where Plaintiff informed the Court that it had sent
notice to 100 class members and an additional 100 persons who may seek an
occasional-use permit for the federal plaza in the future. The notice
informed the class members and potential future users of the settlement
and fairness hearing. The parties received no written objections to the
proposed settlement and no class member appeared to object at the
hearing. At the hearing the parties reiterated their belief that the
proposed settlement was a just and fair resolution of the issues presented
in the lawsuit. In light of the fact that no objectors came forward to
challenge the settlement, and because we believe that the settlement is
otherwise fair and reasonable, we hold that these factors present no bar
to approval of the settlement.

For the foregoing reasons, we approve the proposed settlement. This
action is dismissed with prejudice pursuant to the parties' Stipulation.
This Court will retain jurisdiction over the parties and this action for
three years ...

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